The
centerpiece of the United States organ policy is a flat prohibition
against the use of “valuable consideration” to purchase a live or
cadaveric organ. One obvious consequence of this (indefensible)
decision is the creation of chronic organ shortages that result in the
death of thousands of individuals per year. As happens in all other
markets where prices are capped or exchanges are prohibited, queues
form. The money that would have been a simple transfer payment between
buyer and seller can no longer be paid. Instead, frustrated buyers
invest in time by waiting in line for the goods or services that they
so desperately need. The upshot is that the buyers have to pay in time,
not cash. But their outlays in time are deadweight losses, not simple
transfer payments. Organs are no exception to the general behavioral
response to maximum prices, here set at zero.

The
queues themselves are, however, not stable because people at back of
the queue are desperate to get to the front. In dealing with gasoline
queues, they could easily arrange to make a side payment to take the
place of some lower demander who has obtained a preferred place on the
queue. Swaps of this sort are not possible with organ donations,
because the list for cadaveric kidneys is tightly controlled by the
United Network of Organ Sharing (UNOS), which has received a federal
statutory monopoly to run the organ transplant system. So other efforts
take place to beat the queue. If purchases of organs are not allowed,
then individuals will advertise privately in order to persuade someone
to make an organ gift. That gift is almost always a kidney. The risks
to an organ donor of a kidney transplant are quite low (but by no means
zero), and the palpable gains on the other side are the extension of
life and liberation from the tyranny and pain of dialysis.

There
is, however, at present resistance to individuals making end runs
around the queue. As Sally Satel reported in the May 29th issue of the
Weekly Standard, (http://sallysatelmd.com/html/a-ws5.html) the
guardians at the gate include transplant surgeons who have one-upped
UNOS taken the position that they will not perform even legal kidney
transplants if the organ gift comes from a stranger and not a family
member or friend. As Satel reports, Dr. Douglas Hanto, head of
transplant surgery at Beth Israel Hospital uses the collective “we” to
state “We are in favor of donors coming forward and donating to the
next person on the waiting list. ”

As a defender of institutional autonomy, I would be the last person the
right to challenge Dr. Hanto’s right to steer whatever course on organ
transplant that he chooses. But by the same token, that principle of
institutional of institutional autonomy does not, and should not,
insulate him from the savage criticism that Satel and others have
launched in his direction. The most obvious criticism is that he
endorses the suicidal position that will result in practice in kill all
live donations to strangers. As such it contravenes the fundamental
principle of charitable conduct, which treats charity as an “imperfect”
obligation. Society may, by moral suasion, insist that individuals who
are well off give charity to someone. Because that obligation is
imperfect, no legal compulsion may be used to seek compliance. Nor does
any particular individual have any claim right to some charitable
contribution from any particular donor. The matches are purely
voluntary. If therefore one person wishes to go beyond the call of duty
and give to a stranger, the charitable duty is meet, and indeed
exceeded. We all should be grateful for the gift, and not carp that it
is not given to someone else first.

There is, moreover, a more systematic objection to Dr. Hanto’s
ill-advised position that also needs elucidation. Why do we imbue the
UNOS transplant list with any legitimacy at all? That list itself is
not the result of any deep moral principle, but represents the only
workable compromise that a statist organization like UNOS is able to
put into effect. As a matter of first principle, one sensible test for
the allocation of organs in a nonmarket setting is to place them where
they are likely to do the most good. That question in turn resolves
itself into two different issues. The first is how much benefit with
the organ provide to its recipient, measured the number and quality of
life-years obtained. Next there is a moral dimension: which individuals
do we wish to help and why? . . . .

Many years ago, the late George Stigler wrote that on all important
questions of public policy, matters of allocation—here getting more
organs—would “swamp” matters of distribution—here who gets which organ.
He is surely right: first and foremost we need to do anything to
increase the supply, here subject to the unwise external prohibition
against organ sales.

Viewed in this light, the UNOS list—albeit one filled with hidden
minefields—is a technocrat’s contrivance that is necessary to avoid the
pitfalls of collective choice that do not haunt individual owners. It
has zero intrinsic moral worth. Dr. Hanto has it exactly backwards. Any
decision that circumvents the UNOS list for individual judgment should
be welcomed for its moral seriousness. How tragic it would be if the
rigidities of collective choice remain impervious to correction by the
generous acts of strangers. Sally Satel is right to ask why mainstream
medical ethicists have such a high tolerance for gratuitous cruelty. I
wish I knew the answer to that one.

Posted by RAEpstein. The entire piece is a great read and comments to the post are also quite interesting and informative. [bm]